Monday, August 17, 2009

DNR Silent For Months On Milwaukee Letter About Diversion Rules

On June 1, Milwaukee Mayor Tom Barrett and Ald. Michael Murphy, the Common Council's senior member and resident expert on water policy, urged the Wisconsin Department of Natural Resources in writing to produce administrative rules governing the content and review of Great Lakes water diversions prior to accepting applications seeking diversion permission under The Great Lakes Compact.

Wisconsin signed on to the Compact last year, but the DNR has yet to write administrative rules governing applications.

Having administrative rules in place first is opposed by the City of Waukesha, which has water utility staff and consultants hard at work writing the first diversion application under the Compact that seeks to move water to a community entirely outside the Great Lakes basin.

My belief is that the closer we get to Waukesha launching its application without the DNR's rules in place, the more likely that one of more of the seven other Great Lakes states that would have to participate in a unanimous approval of the Waukesha request will balk - - not because the application was necessarily deficient, but because the Wisconsin DNR will be seen as a renegade or uncooperative partner in what is supposed to be a regional, two-country collaborative process governing diversions and enhancing Great Lakes watershed conservation.

So it should be Waukesha that is most interested in a coherent approval process; forging ahead could be self-destructive, which is why the DNR needs to step up and say it will keep the horse before the cart: rules first, then reviews.

Under a legal agreement, Waukesha has until 2018 to provide water to its users that is free of naturally-occurring radium in well water.

Waukesha's preferred solution is a precedent-setting diversion of up to 18.5 million gallons daily of Lake Michigan water, with a probable return flow scheme using Underwood Creek in Wauwatosa - - though the return flow regime is under study and no approvals or permits have been secured.

And Waukesha has not settled on Milwaukee as a source of Lake Michigan water, with Oak Creek and Racine also potentially available - - but does intend to pressure Milwaukee to agree to be the supplier and to take certain procedural initiatives on Waukesha's behalf to get that done.

More on that later.

Without a response for two-and-a-half months to their initial letter to the DNR, Barrett and Murphy have sent a follow-up letter.

Here is the text:

August 17, 2009

Secretary Matthew Frank
Wisconsin Department of Natural Resources
101 South Webster Street
Madison, Wisconsin 53707

Dear Secretary Frank:

As you recall, we sent you a letter in early June regarding the process the Wisconsin Department of Natural Resources (WDNR) will use in accepting and reviewing any applications for diversions submitted after the effective date of the Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact). We have not received a response, nor has any of our staff. Although we recognize that this must be a difficult decision for the DNR, a letter or call acknowledging receipt of our letter and an estimated time for a response would have been appropriate.

We continue to recommend that the WDNR accept no application for diversion until the WDNR has issued administrative rules and guidelines for implementation of the Compact and that those rules are fully implemented. We have met with Mayor Nelson and understand his desire to move forward with an application as soon as possible. We believe that Waukesha’s application and the WDNR’s review would be subject to fewer legal challenges and delays if administrative rules were in place to clarify the substantive requirements for a diversion application that were not addressed during the legislative process.

We also continue to recommend that any applicant for a diversion bear the burden of proof and cost of demonstrating that the application is consistent with the requirements of the Compact and any implementing rules. As we stated in our earlier letter, no City or entity other than the applicant should be asked to fund studies or reviews necessary to show compliance with the Compact.

We look forward to your response.


Mayor Tom Barrett

Alderman Michael J. Murphy

cc: Todd Ambs
Mayor Larry Nelson, City of Waukesha

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